Compliance December 8, 2010

Court Tosses Suit over 401(k) Deferral Limits

A federal judge in New Jersey said that a 401(k) participant has no legal right to sue his employer over the company’s deferral limit of 15%.
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U.S. District Judge Noel L. Hillman of the U.S. District Court for the District of New Jersey ruled that Section 401(k) of the federal tax code gave Beiliang Loh of Vineland, New Jersey, no right to bring suit to enforce the statute as a private party. Loh represented himself in the proceedings.

Loh’s suit charged that the employer, Whibco Inc., removed $8,396 from his plan account after an Internal Revenue Service (IRS) agent notified Whibco that Loh’s annual contribution for 2007 was higher than 15% of his compensation, so it was not permitted under the rules of the Whibco, Inc., Non-Union Retirement Plan. Loh sued the company and the IRS agent, and sought a court order to return the money to his account and $350 to repay his federal court filing fee.

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Loh argued that the court should interpret Section 401(k) of the tax code in a manner that does not “demonstrate prejudice against lower salaried workers who wish to make a greater contribution to their retirement accounts.”

After defendants asked Hillman to throw out Loh’s suit, Loh said in court papers that as an “express[ion] [of his] cooperation and kindness,” he will “voluntarily reduce” his “request of the return amount to [his] 401(k) account from $8,396.00 to the catch-up amount of $5,000.”

In deciding the case, Hillman noted that the IRS is charged with making and enforcing tax rules and that its interpretation of those rules is entitled to deference. Wrote Hillman: “The Court, therefore, will not substitute its opinion for that of the IRS and overturn its regulation establishing employer-provided limits.”

The case is Loh v. Richardson-Browne, D.N.J., No. 10-0054 (NLH).

Deals & People December 8, 2010

Arnerich Massena Hires New Institutional Chief

Arnerich Massena, a Portland, Oregon-based independent money manager, chose Scott Dunbar to be its director of institutional services.
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A news release said Dunbar will manage and provide oversight of Arnerich Massena’s institutional group, which provides investment advisory services to businesses, not-for-profit organizations, public entities, and foundations and endowments.

Dunbar brings more than 30 years of experience advising organizations on employee benefits and investment issues and has extensive management and business development expertise, the company said. Before joining Arnerich Massena, he served as principal and market leader for Buck Consultants, with full profit and loss responsibilities for the San Francisco office. Prior to his tenure at Buck, Scott also served as senior vice president of Aon Consulting, managing director of The Dunbar Group, and vice president of M Financial Group/M Benefit Solutions.

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Dunbar earned his B.S. in accounting and quantitative methods at the University of Oregon and his J.D.at the Northwestern School of Law at Lewis and Clark College.

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